Professional Documents
Culture Documents
CCZ 5/22
1
Chamber Application No. CCZ 24/22
REPORTABLE (5)
GOVATIMHORA
v
EMMACULATA MHORA
IN CHAMBERS
time within which to file an application for leave to note an appeal against the decision of the
Supreme Court under judgment number SC 89/20. The instant application was made pursuant
to r 35 of the Constitutional Court Rules 2016. The applicant craves the grant of his application,
Background
The two parties involved in this matter are a formerly married couple in terms of
the Marriages Act [Chapter 5:11]. Following an irretrievable breakdown in their relationship,
the respondent sought a decree of divorce in the High Court. The order sought in the court
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a quo also regulated the distribution of their perceived matrimonial property. During the course
of those proceedings, the applicant contested the distribution of an immovable property known
as house number 114 Lomagundi Road, Harare. His chief argument was that there was no direct
contribution towards the purchase of the property by the respondent and hence she was
disentitled from any claim to the property as part of their divorce proceeds.
This proposition was countered by the respondent who insisted that she had been
the primary caregiver to their family and had remitted the various monies she had earned to the
applicant during the subsistence of their marriage. The applicant’s purported former second
wife also testified to the same effect on behalf of the respondent. She submitted that the
respondent had raised various amounts of income that she submitted to the applicant during
their marriage. In the event, the court a quo found in favour of the respondent and granted her
appeal to the Supreme Court. From the submitted grounds of appeal, the sole issue that arose
for determination was whether the court a quo had erred in awarding the respondent a fifty
It was submitted on behalf of the applicant that the court a quo had adopted a
narrow construction of the principle of equality as the respondent had not contributed towards
the purchase of the immovable property. It was contended that the judgment by the court a
quo upset the established jurisprudence regarding the primary considerations for equitable
Per contra, the respondent submitted that the court a quo had exercised its wide
discretion under s 7 of the Matrimonial Causes Act [Chapter 5:13] (“the Matrimonial Causes
Act”). It was contended that the High Court in arriving at its determination was guided by the
Constitution as well as established precedent. The respondent submitted that taking into
consideration the circumstances of the case, the court a quo’s determination could not be
faulted.
Once seized with the matter, the Supreme Court proceeded to first correct the order
of the court a quo that had omitted to grant a decree of divorce before distributing the parties’
matrimonial property. On the merits, it reaffirmed the respondent’s position that s 26(c) and
(d) the Constitution, as well as international law, mandated a fair and equitable distribution of
matrimonial property. The Supreme Court upheld the court a quo’s determination on the basis
that the court a quo had properly exercised its discretion under the Matrimonial Causes Act.
The Supreme Court also noted that the applicant’s moral turpitude was a critical
factor in the decision of the High Court. The applicant’s conduct in trying to frustrate the
equitable distribution of matrimonial property was held to justify the order granted by the High
Court. Thus, the appeal was held to be meritless and dismissed. Thereafter, the applicant failed
to note an application for leave to appeal against the Supreme Court’s decision within the
Based on the foregoing, the applicant filed the instant application before this Court
on 22 March 2022. The judgment of the Supreme Court was handed down on 29 June 2020
and the Rules of this Court provide fifteen days from the date of judgment to apply for leave
to leave to note an appeal against the judgment. The applicant was evidently barred from noting
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Chamber Application No. CCZ 24/22
his application for leave to appeal against the Supreme Court’s decision and hence he has filed
In his founding papers filed of record, the applicant averred that his application for
condonation ought to be granted as the intended application for leave to note an appeal enjoyed
prospects of success. It was contended that the applicant enjoyed a right to petition the Court
under s 69(3) of the Constitution and, in the present instance, such access hinged on the
existence of a constitutional matter in the subordinate court. He averred that the Supreme Court
overextended the import of the notion of “equality” when interpreting the provisions of the
It is on the basis of the foregoing that the applicant submitted that he had a
justiciable right to equality under s 56 of the Constitution that ought to be protected by this
Court. He averred that s 56(3) of the Constitution, in particular, prohibited every person,
including judicial officers, from discriminating against litigants based on their culture. He
asserted that the High Court’s determination was primarily influenced by his cultural practice
of taking another spouse during the subsistence of his marriage to the respondent. The applicant
advanced the position that the Supreme Court consequently failed to protect his right to
equality. This constituted a flagrant violation of his fundamental right which ought to be
Regarding the extensive delay in applying for leave to note an appeal, the applicant
pleaded that he had limited financial liquidity to afford legal consultation and was oblivious of
the prescribed period to access this Court. He also averred that the Covid-19 pandemic
militated against the filing of the present application due to onerous lockdown restrictions. The
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applicant conceded that the extent of the delay in filing the application was inordinate but
countered this concession by reasoning that, at any rate, the respondent was not prejudiced by
The application was strenuously opposed by the respondent. She averred that the
Supreme Court was not seized with a constitutional matter and did not determine any
constitutional issues in rendering its verdict. The respondent submitted that the draft grounds
of appeal filed by the applicant related to general points of law. It was contended that the
judgement of the Supreme Court did not stray from the established legal precepts governing
the distribution of matrimonial property in determining the rights of the parties. The application
was deemed to be an abuse of court process due to the obvious absence of any constitutional
Submissions by counsel
extensive delay in filing the present application and that such delay was inordinate. She
countered her concession by arguing that the applicant had been pondering his available
remedies due to the complexity of the matter. It was submitted that the applicant sought legal
advice from counsel, a process that extended the delay in filing the present application. When
it was pointed out that the founding affidavit on record contradicted her submissions, counsel
admitted that the applicant had not been candid with the Court. She then submitted that the
applicant’s precarious financial position had prevented him from engaging legal counsel
timeously. Upon further inquisition by the Court, it was conceded that the applicant’s
Ms Majome submitted that the respondent would not suffer any financial prejudice if leave to
appeal were to be granted. She insisted that the filing of the matter was not predicated on the
election of the respondent to exercise her right to liquidate her fifty percent holding in the
disputed immovable property. It was advanced that other measures could be employed to
alleviate any possible prejudice suffered by the respondent as a result of the petition to this
Court. To buttress her submissions, Ms Majome submitted that the applicant would provide for
the respondent’s financial needs whilst this Court dealt with the substance of the parties’
dispute.
Supreme Court amended the law by awarding the respondent a fifty percent share in the
property. When pressed on the exact constitutional issue determined a quo, counsel conceded
that the Supreme Court did not explicitly deal with any constitutional matter. Rather, it was the
import of its determination that raised a constitutional issue. She submitted that the court a quo
legislated over and above what was provided for in the Matrimonial Causes Act.
In essence, it was argued that the Supreme Court failed to properly apply the
principles set out in the aforementioned Act. Ms Majome submitted that the applicant was
punished for conducting his marital affairs in a polygamous manner. She indicated that the
judgment reprimanded the applicant for indulging in a potentially polygamous marriage during
In any event, Ms Majome was unable to pinpoint specific portions of the Supreme
Court’s judgment that admonished the applicant’s polygamous conduct. In a bid to lend
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credence to her submission on this aspect, she argued that the issue was addressed in the
proceedings before the High Court. However, the High Court judgment was not made part of
the record before this Court. Nonetheless, Ms Majome persisted with her argument that the
Supreme Court discriminated against the applicant on the grounds of custom and culture and
Per contra, Ms Damiso submitted that the applicant had conceded that the delay in
filing the instant application was inordinate and urged the Court to disregard the reasons
proffered in explaining the delay. She referred to correspondence on record between the parties
that highlighted their concurrence in implementing the order of the High Court that had been
upheld on appeal. It was submitted that the applicant initially did not highlight any
dissatisfaction or intent to appeal against the Supreme Court’s determination. Thus, Ms Damiso
argued that the present proceedings were only prompted by the respondent’s election to sell
was advanced in age, well beyond 65, and that the protracted legal dispute threatened her
already precarious financial position. She submitted that her client needed the judgment of the
High Court to be executed so that she could access the financial proceeds from the sale of the
immovable property. Ms Damiso also noted that the applicant had not contested the
respondent’s submissions through an answering affidavit and that therefore her averments were
to be deemed uncontested.
Ms Damiso vehemently rebutted the notion that the Supreme Court dealt with a
constitutional question in its judgment. She submitted that reference was made to s 26 of the
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Constitution in its judgment to highlight that the Supreme Court was alive to the application of
the principle of equality in determining the rights of the parties in terMs of the Matrimonial
Causes Act. It was contended at any rate that the Supreme Court’s application of the
aforementioned s 26 was not an intended ground of appeal as formulated in the draft notice of
appeal. She argued that the applicant’s objection was against the application of the Matrimonial
Causes Act. Thus, the prospective appeal was doomed to fail on the grounds advanced by the
applicant. It was submitted that this Court could not exercise its discretion in a non-
in this jurisdiction. The Court will primarily assess these factors, although they are not limited
or exhaustive, depending on the facts of the matter at hand. They are as follows:
The extent of non-compliance with the Rules of the Court. See Zhuwaki v The State SC
99/21 at p 4.
The explanation for non-compliance with the Rules of the Court. See Chikanga v The
The prospects of success. See Prosecutor General v Intratek Zimbabwe (Pvt) Ltd &
Anor SC 59/19 at p 13; S v Tengende and Ors 1981 ZLR 445 (S) at 446H–447A; Kereke
It is a common cause in this matter that the delay in filing not only the application
for leave but also the instant application for condonation is inordinate. The applicant concedes
that there was a protracted delay from the date judgement was delivered on 29 June 2020 by
the Supreme Court to the lodging of the instant application on 22 March 2022. The extent of
the delay in vindicating the applicant’s constitutional rights falls just short of two full years,
at odds with the applicant’s averments in his founding affidavit. Upon reflection of the Court’s
observation regarding this disparity, she conceded that the applicant was not being candid in
the papers filed of record. In his founding affidavit, he pleads financial impoverishment
amongst a variety of other reasons. This position was contradicted by the submissions made by
Ms Majome to the effect that the delay was occasioned by the complexity of the legal issues
Ms Majome attempted to absolve the applicant by passing the blame onto her junior
who was supposedly tasked with drafting the founding affidavit. It is trite that, generally, a
litigant cannot be absolved of the alleged ineptitude of his or her chosen legal practitioners.
See Beitbridge RDC v Russel Construction 1998 (2) ZLR 190 (S). The applicant’s difficulty is
compounded by having appended his signature to the founding affidavit. Certainly, candour is
the bare minimum in an application that beseeches this Court to grant its indulgence for non-
The Supreme Court in Moroney v Moroney SC 24/13 upheld the position that a
litigant’s lack of candour fatally impairs his argument. It was held as follows, at p 7 of the
judgment:
“In Leader Tread Zimbabwe (Pvt) Ltd v Smith HH-131-03 NDOU J at p 7 of the
cyclostyled judgment stated as follows:
‘It is trite that if a litigant gives false evidence, his story will be discarded and
the same adverse inferences may be drawn as if he had not given evidence at all
– See Tumahole Bereng v R (1949) AC 253 and South African Law of Evidence
by LH Hoffman and DT Zeffert (3 ed) at p 472. If a litigant lies about a
particular incident, the court may infer that there is something about it which he
wishes to hide’.”
In casu, the applicant’s lack of probity regarding the circumstances resulting in the
inordinate delay to petition this Court fortifies the respondent’s case. Ms Damiso submits that
the letters exchanged by the parties highlight the fact that the applicant at all material times
was under legal representation and that the delay was therefore not occasioned by any lack of
financial capacity. When this is tallied with the concoction of differing justifications proffered
by the applicant, it is abundantly evident that he is not being candid with the Court.
Consequently, he has not been able to provide a reasonable explanation for his failure to
Balance of convenience
consideration of the interests of justice. The Court is compelled to make a value judgment of
the balance of convenience that is informed by the circumstances of the parties in the matter.
The applicant, through his counsel, pledged to indemnify the respondent for any financial loss
occasioned by the possible adjudication of the dispute by this Court. On the other hand, the
respondent submits that her status as an elderly person accentuates her need to have the matter
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resolved expeditiously. She highlights her dire financial straits as motivating her election to
Generally speaking, a court ought not to allow the interests of justice, which has
fairness at its core, to be trumped by issues of expediency. See Nel & Ors v The State [2017]
ZAGPJHC 296. However, I am inhibited from finding in favour of the applicant in this respect,
given that he has also pleaded financial impoverishment in his founding papers. Accordingly,
to place the respondent at the mercy of a party whose own financial situation is shrouded in
the existence of a constitutional question is reinforced in the rules that govern access to this
Court. The relevant rules in this regard are r 35, which governs applications for condonation
and extension of time, and r 32 which deals with the substance of the prospective application
for leave to note an appeal should the Court accede to the request for condonation.
Rule 32(2) of the Constitutional Court Rules provides the following on the right of
further highlighted by the succeeding r 32(3) which mandates that an application for leave to
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appeal to this Court must contain or have attached to it a statement setting out clearly and
concisely the constitutional matter raised in the decision sought to be appealed against. In
addition, the founding affidavit supporting the application must verify the fact that the cause
of action arises from a decision of the subordinate court premised on a constitutional matter.
Therefore, it is axiomatic that where the subordinate court has not determined a constitutional
issue, a litigant has no right of appeal to this Court. Access to the jurisdiction of this Court
unavoidably hinges upon the existence of this juridical fact. It is unarguably the sine qua non
The applicant’s counsel pinpointed s 26(c) of the Constitution which was referred
to in the impugned judgment as establishing a basis for petitioning this Court. Ms Majome
submitted that the Supreme Court violated the import of equality in respect of the rights of the
parties at the dissolution of their marriage in applying the principles enunciated in the
This position was countered by Ms Damiso who insisted that the Supreme Court
disposed of the matter on a non-constitutional basis. She cited the case of Chiite & Ors v The
Trustees of the Leonard Cheshire Homes Zimbabwe Central Trust 2017 (1) ZLR 603 (CC), to
support the contention that a prospective appeal to this Court ought to be premised on a
constitutional question that was determined by the lower court. She pointed to the prospective
Constitution by a subordinate court does not establish a constitutional issue. In casu, the
application for condonation and the attached draft application for leave fail to meet the essential
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requirement of a constitutional matter as obligated by the Constitution and the Rules. The
applicant’s founding affidavit does not set out the constitutional matter that was determined by
the Supreme Court. The applicant seems keenly aware of this fact as evidenced by the poverty
of his flimsy reference to s 56 of the Constitution in his papers in seeking to establish a basis
Furthermore, the attempt to latch onto s 26(c) of the Constitution in the course of
affidavit and the draft application for leave are patently devoid of any mention of the specific
manner in which the Supreme Court is alleged to have violated the rights protected under that
constitutional provision.
This Court, in The Cold Chain (Pvt) Ltd t/a Sea Harvest v Makoni 2017 (1) ZLR
“The mere reference to the Constitution did not make what was said a constitutional
matter. Reference by the Supreme Court to s 176 of the Constitution was an obiter
dictum. The Constitution was referred to after the ratio decidendi had been arrived at
and declared by the court. The effect of what the Court said in relation to s 176 of the
Constitution was that its reasoning was not inconsistent with the provisions of that
section. That is different from saying the decision on the issues before the court were
based on the interpretation and application of s 176 of the Constitution.
It follows that where a subordinate court did not take a view of the case that required it
to interpret and apply a constitutional provision to determine the issue raised, the matter
does not pass for a constitutional matter. Application for leave to appeal will be
dismissed as the subordinate court will have rested its decision on an independent non-
constitutional ground.” (My emphasis)
The above position was reiterated in Madyavanhu v Saruchera & Ors 2019 (1)
ZLR 434 (CC) at 438B, wherein the following was observed regarding the right of appeal to
this Court:
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From the above-cited authorities, it is evident that an application for leave to note
an appeal against the determination of a lower court in the Constitutional Court hinges upon
the existence of a constitutional matter. The present application for condonation and extension
of time cannot be granted as the prospective application for leave to appeal fails to satisfy the
threshold for accessing the jurisdiction of this Court. The reference by the court a quo to the
concept of equality enshrined in s 26(c) of the Constitution was purely tangential and not in
any way dispositive of the main non-constitutional issues determined by that court. Thus, the
absence of a constitutional matter critically undermines the validity of the instant application.
Disposition
considered cumulatively. The instant application fails to satisfy any of the evaluated
requirements for the Court to consider granting its indulgence. The disingenuous explanation
proffered by the applicant for the delay in lodging the application in effect aggravates his non-
compliance with the Rules due to his lack of probity and candour regarding the inordinate
delay. This has the attendant effect of tipping the balance of convenience in the respondent’s
favour. In any event, the most pertinent factor in the disposition of this matter is the absence of
a constitutional matter. It is evident that the Supreme Court did not determine any constitutional
issue in deciding the questions before it. Consequently, the applicant has no discernible
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prospects of success on appeal should leave to appeal against the judgment of that court be
granted.
conduct on the part of the applicant and withdrew her initial prayer for costs on behalf of the
respondent. Ms Majome submitted that the general position in constitutional matters ought to
prevail. I fully agree and find no reason to depart from the usual position of not awarding costs
in constitutional litigation.
In the result, it is ordered that the application be dismissed with no order as to costs.